RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-04939

   						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  He receive medical continuation (MEDCON) orders covering the period Feb 11 through his retirement date of 28 Sep 14. 

2.  He be issued a final DD Form 214, Certificate of Release or Discharge from Active Duty, which includes the active duty time from the MEDCON orders, and reflects his retired status.

APPLICANT CONTENDS THAT:

1.  He was injured while deployed to Bagram Air Base, Afghanistan, was sent to a Medical Evaluation Board (MEB), and was ultimately medically retired due to his injuries.  In accordance with DoDI 1241.2, Reserve Component Incapacitation Management System, Section 6.6.3.2, he was supposed to be retained on active duty from the expiration of his orders until he was fit for duty or retired as the result of a Disability Evaluation System (DES) determination.  However, due to lack of knowledge of how the medical evaluation system works, his leadership failed to provide him with the MEDCON orders during this period, even though he repeatedly requested orders.  

2.  He was never issued a DD Form 214 when he was medically retired.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant served in the grade of staff sergeant in the Air National Guard (ANG) during the period under review.  

According to the documentation submitted by the applicant, under Special Order R-0000174, dated 10 Jun 09, he was mobilized in support of Operation ENDURING FREEDOM (OEF) for the period 9 Aug 09 through 8 Oct 10.  

On 20 Aug 10, the applicant was issued an Honorable discharge certificate, with a narrative reason for separation of “Release due to demobilization,” and was credited with 1 year, 2 months, and 14 days of active service this period. 

The DD Form 2900, Post-Deployment Health Re-Assessment (PDHRA), dated 9 Jan 11, indicates he suffered a fall and “hit his head a couple times.”  The form further indicates he lost consciousness; felt dazed, confused or saw stars and did not remember the event; as a result, he experienced ringing in his ears, sensitivity to bright light, irritability and sleep problems.  The DD Form 2900 also indicates he experienced emotional problems.

On 19 Mar 12, a DD Form 261, Report of Investigation, Line of Duty and Misconduct Status, indicates a diagnosis of Post-Traumatic Stress Disorder (PTSD), in the line of duty (ILOD) as of 2 Feb 11.  

Under Special Order No. ACD-03294, dated 21 Aug 14, the applicant was relieved from active duty and permanently disability retired with a compensable disability rating of 40 percent, effective 27 Sep 14.  

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are included at Exhibits C, F, and I.

AIR FORCE EVALUATION:

AFPC/DPFA recommends partially granting the applicant’s request, indicating there is evidence of an error or injustice.  In accordance with AFI 10-203, Duty Limiting Conditions, paragraph 4.2.1.6.3, the PEBLO initiates the VA Form 21-0819, VA/DoD Joint Disability Evaluation Board Claim, and then forwards the form to the provider for further clinical information and signature to initiate the Veteran's Administration (VA) evaluation as part of the Integrated Disability Evaluation System (IDES).  The date of the provider's signature is the formal initiation date for all IDES cases.  While the applicant contends he was in IDES as of Feb 11; he was not in IDES until the VA Form 21-0819 was signed on 01 May 13.  There is no indication as to why MEDCON was denied by his command staff.  Therefore, there is insufficient documentation to support MEDCON orders from the Feb 11 date requested by the applicant.  

On 02 Jul 13, when the applicant was mobility restricted and still receiving medical treatment for conditions which had been determined to be in the line of duty (ILOD), he applied for MEDCON orders.  Therefore, he was eligible for MEDCON orders beginning on 2 Jul 13 and continuing until the IDES processing was completed and he was medically separated.  Recommend the approving MEDCON orders covering the period 2 Jul 13 through 28 Sep 14, the date IDES processing was completed and the applicant was medically separated.  

A complete copy of the AFPC/DPFA evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his original request, the applicant submitted a rebuttal response to the Air Force evaluation, in which he reiterates his contention his MEDCON orders should start in Feb 11.  He was injured while on Title 10 active duty orders in support of OEF while serving from Aug 09 through Jun 10.  The IDES process should have been started much earlier.  The MEB process was initialized in Feb 11 by his Medical Group, and he was sent to medical appointments with travel orders while under the MEB process, but not Title 10 active duty orders.  He regularly attended medical appointments from Feb 11 through Sep 14.  DoDI 1241.2, Reserve Component Incapacitation Management System, Section 6.6.3.2, is the reason he applied to the AFBCMR and he asks it be complied with now.  He did apply for MEDCON orders in May 13, but was denied without any reason ever given for the denial.  (Exhibit E) 

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends partially granting the applicant’s request, indicating there is evidence of an error or injustice.  DoDI 1241.2, paragraph 6.6.3.2. states “A Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty shall, with the member’s consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination.”  

The applicant’s medical documentation includes the following relevant events:  

	a.  On 21 Sep 10, a Mental Health Clinic intake note shows the applicant reported “anxiety and panic attacks since his return from deployment.”  He also “reported increased startle response and fear of large crowds.  Veteran declines MH services at this time.”

b.  On 21 Jan 11, VA Medical Center notes indicate a diagnosis of anxiety (NOS), ADHD, major depressive disorder (single episode), and ruled out PTSD.

c.  On 15 May 11, an AF Form 469, Duty Limiting Condition Report, was initiated and indicates the applicant was placed on mobility restrictions.  The document is coded “37,” to indicate MEB/PEB processing was required.  Comments on the document read, “State Air Surgeon will no longer grant an interim waiver for IDT.  MPA/AFR members must be performing military duty or be in a leave status.”  Expiration date: May 14, 2012.

d.  On 9 Jun 11, a Post-Deployment Health Assessment shows the applicant blackened “very difficult” in response to the question asking “how difficult have emotional problems made it to perform work, take care of things at home, or getting along with people during the past 4 weeks.”  Ironically, he also characterized his health as “excellent” overall during the past month and “not difficult at all” to the question asking how difficult have physical health problems made it to perform work or other regular daily activities.  The applicant also characterized his general health as “much better now than before [he] deployed.”

e.  On 5 Oct 11, a notice was sent from the 123rd Medical Group to the Physical Evaluation Board Liaison Office] (PEBLO), 88th MDSS/SGST, Wright-Patterson AFB, OH, which reads, “forwarding records to that office for MEB processing IAW, AFI 48-123.”  [AFBCMR Medical Consultant:  It is clear at this juncture the applicant’s MEB action was likely initially triggered due to a disqualifying mental condition.]

f.  On 15 Nov 11, a Commander’s Impact Statement is descriptive of a “noticeable change in [applicant’s] mental and physical well-being upon his return to duty in December 2010.”  The commander commented further, “Due to the critical nature of aircraft maintenance his supervisors no longer have the confidence to assign him hands-on aircraft work since September 2011.”

g.  On 21 Feb 12, or thereabout, the applicant submitted a Congressional complaint and a request for assistance with being placed on active duty orders. 

h.  On 27 Mar 12, an INITIAL REQUEST APPLICATION for MEDCON was completed by the applicant.  The applicant also completed the AFMOA Medical Operations MEDCON Program Letter, constituting a questionnaire and checklist, acknowledging his understanding of MEDCON policies and procedures.  An AF Form 469 coded “37” initiated on this date reflects mobility and duty restrictions, with an expiration date of 27 Mar 13.  Conditions listed on the document include left knee injury, shoulder, neck, back, and PTSD.

i.  On 15 Jun 12, an evaluation conducted at the Physical Therapy Clinic, Ireland ACH, Ft. Knox, KY addressed the applicant’s left shoulder and knee pain.  At the time of evaluation, the provider entered patient goals, which included the comment, “Avoid MEB.” 

j.  On 9 Jul 12, a telephone inquiry shows the applicant called to discuss his case.  The provider noted, “SM (service member) has learned that he is having trouble getting on MEDCON orders because he is not on Veterans Tracking.”  The provider entered, “Not sure who or what this is.  SM asked to please check into this.  Also, MEB office at Wright-Patterson AFB is involved but it seems confused.  His appointments at Ft. Knox seem confused.  Ms.XXX at Ft. Knox was not sure how this is working and what is needed.  SM needs some assistance in sorting this all out.”

k.  On 28 Aug 12, an “Office visit to discuss SM’s plans.  SM is still committed to remaining in the military and is considering various cross-training options to remain in service.  Discussed that cross training may be good and may be useful if SM is “boarded out.”  SM reported that Dr. XXX was not interested in surgery.  SM could not provide explanation for this understanding.  Discussed case with MEB office PEBLO.  [AFBCMR Medical Consultant:  This reviewer finds the comment on retention a possible self-imposed obstacle to proceeding with timely MEDCON orders and MEB/PEB processing.]

l.  On Jul 13, the applicant completed another AFMOA MEDCON Program Letter of Acknowledgement, with his initials entered alongside several policy statements to, again, indicate his full awareness of the requirements and procedures set forth, including keeping all scheduled appointments, maintaining a current AF Form 469, his requirement to perform duty within medical limitations, an understanding that “extension on Title 10 active duty orders is for medical treatment and /or DES processing,” and that “orders will be terminated the same day [his] medical eligibility changes, for example, but limited to RTD, medical discharge, or when [he] request[s] to be released from Title 10 active duty orders, whichever condition occurs first, IAW DoD 1241.02.” 

Concerning the applicant’s AFBCMR request for MEDCON orders, clearly efforts were undertaken to medically separate/retire the applicant from CY11.  There appears to have been some ambivalence on his part for retention, which may have played a role in delays.  Nonetheless, the resumption of efforts in Mar 12 and disclosure of the confusion experienced by medical officials at an Army and an Air Force tertiary care facility, may also have contributed to delays, e.g., noting the applicant had not been entered into “VA Tracking” in Mar 12.  It was not until CY13 the process was back on track with the official involvement of the DVA; hence, the recommendation by HQ AFPC/DPFA to initiate MEDCON orders only from 2 Jul 13. 

AFI 36-2910, Medical Continuation (Medcon) For ARC Members, paragraph 5.2.3. states, “A member who can perform military duties but requires medical care for a minor or chronic medical condition may be provided medical treatment for such condition through the VA or TRICARE benefits; the member does not have to be on MEDCON orders to receive medical care for an ILOD condition.  Additional information can be obtained from the member’s RMU/GMU, MTF TRICARE office or VA.”  A declaration the applicant was capable of attending medical appointments and treatment sessions without active orders was never stated by officials; although, his profile arrangement as late as 23 Nov 13, suggests this may have been the intent.  Further, AFI 36-2910, outlines the member’s responsibility, stating “5.3.1.2., Member... Provide current and sufficient medical documentation and respond to official correspondence from the servicing medical unit and/or ARC CMD regarding the member’s medical status.”  The Medical Consultant found the applicant’s medical documentation sufficient for a determination.  However, his periodic stated interest in retention may have been an unintended impediment to establishing MEDCON orders and timely MEB/PEB processing.

The Medical Consultant has searched in earnest for error or injustice on the part of the government; noting possible complicity at all levels, including the applicant, in any delays in MEB/PEB processing and MEDCON orders; notwithstanding the reality of the widely dispersed treatment centers.  The service evidence indicates the applicant first applied for MEDCON on or about 27 Mar 12; the date one of his unit healthcare providers also initiated another AF Form 469, coded “37.”  

When collectively considering the applicant’s initial date of application for MEDCON orders in Mar 12, his health care provider’s re-establishment of an AF Form 469, coded “37” on 27 Mar 12, with specific reference of its purpose to complete the MEB process, the confusion about the VA Tracking System, and his commander’s letter from CY11 removing the applicant from his AFSC due to mental and physical concerns, the Medical Consultant recommends offering the applicant MEDCON or active duty orders from on or about 27 Mar 12 through his date of retirement.  

A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit F.

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

In further support of his original request, the applicant submitted a response to the Air Force evaluation, in which he states he concurs with the advisory writer’s findings and recommendation to grant him MEDCON orders or active duty orders from 27 Mar 12 through his date of retirement.  (Exhibit H)

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor recommends partially granting the applicant’s request, indicating there is evidence of an error or injustice.  After a thorough review of the applicant’s case file, including all the medical records and advisories provided by AFPC/DPFA and the AFBCMR Medical Consultant, the Psychiatric Advisory fully concurs with the assessment and conclusion and recommendation of the AFBCMR medical advisor.  

A complete copy of the AFBCMR Psychiatric Advisor evaluation is at Exhibit I.

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the AFBCMR Psychiatric Advisor evaluation was forwarded to the applicant on 31 Oct 17 for review and comment within 30 days (Exhibit J).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case, to include his concurrence with the Medical Consultant’s advisory opinion, and agree with the recommendations of the AFBCMR Medical Consultant and Psychiatric Advisor and adopt the Medical Consultant’s rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  Therefore, we recommend the applicant's records be corrected as indicated below.

4.  The applicant’s case is adequately documented and it has not been shown a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show:

	1.  He served on active duty under Title 10 United States Code (USC), Section 12301(h) (medical continuation) during the period 27 March 2012 through 27 September 2014, and competent authority granted an extension through the date of his medical retirement on 27 September 2014 in accordance with Title 37 USC Section 204(i) (2).  

	2.  He was issued a DD Form 214, Certificate of Release or Discharge from Active Duty, as of 27 September 2014.

The following members of the Board considered AFBCMR Docket Number BC-2015-04939 in Executive Session on 21 Feb 17 and 30 Nov 17 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 18 Nov 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFA, dated 6 Oct 16.
	Exhibit D.  Letter, AFBCMR, dated 17 Oct 16.
	Exhibit E.  Letter, Applicant, dated 9 Nov 16. 
Exhibit F.  Memorandum, AFBCMR Medical Consultant, dated 13 Jan 17.
Exhibit G.  Letter, AFBCMR, dated 18 Jan 17.
Exhibit H.  Letter, Applicant, dated 10 Feb 17.
Exhibit I.  Memorandum, AFBCMR Psychiatric Advisor, dated 27 Oct 17.
Exhibit J.  Letter, AFBCMR, dated 31 Oct 17. 

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.